Opinion
No. 179.
Argued April 23-26, 1909. Decided May 24, 1909.
Judgment of the lower court against a surety on the official bond of an Indian agent affirmed without opinion by a divided court. Quare, Whether failure to give credit for vouchers because of misrepresentation as to part of the amount represented by the vouchers is the enforcement of a statutory rule of accounting under the act of July 4, 1884, c. 180, 23 Stat. 76, p. 97, or the imposition of a penalty.
The Circuit Court and the Circuit Court of Appeals held that the rejection of vouchers for over ten thousand dollars which contained misrepresentations as to less than two thousand dollars was not the imposition of a penalty but only the statutory rule of accounting applicable to the case, and that the agent had had an opportunity to file corrected vouchers but had not availed of it. The court below also held that the defenses that the bond had been extorted under color of law and that the criminal judgment against the agent for fraudulent vouchers was a bar to the recovery from the surety under the bond were untenable.
Mr. J. Kemp Bartlett and Mr. Milton S. Gunn for plaintiff in error.
Mr. Assistant Attorney General Russell, with whom The Attorney General was on the brief, for defendant in error.
Judgment affirmed by an equally divided court, and cause remanded to the Circuit Court of the United States for the District of Montana.
MR. JUSTICE MOODY did not sit.
Decisions on Petitions for Writs of Certiorari from February 24, to June 1, 1909.
No. 720. BERNARR MACFADDEN, PETITIONER, v. THE UNITED STATES. March 1, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Henry M. Earle for petitioner. The Solicitor General for respondent.
No. 730. THE UNITED STATES, PETITIONER, v. DANIEL J. RIMER ET AL. March 1, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit granted. The Attorney General and The Solicitor General for petitioner. No appearance for respondent.
No. 731. GRAND TRUNK WESTERN RAILWAY COMPANY, PETITIONER, v. JOHN F. DEVINE, ADMINISTRATOR, ETC. March 8, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. George W. Kretzinger for petitioner. Mr. Edward Maher for respondent.
No. 733. LAWRENCE JOHNSON CO., PETITIONERS, v. THE UNITED STATES. March 8, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Howard T. Walden and Mr. Henry J. Webster for petitioners. The Solicitor General for respondent.
No. 734. DOWAGIAC MANUFACTURING COMPANY, PETITIONER, v. McSHERRY MANUFACTURING COMPANY ET AL. March 8, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Fred. L. Chappell and Mr. Morison R. Waite for petitioner. Mr. E.E. Wood and Mr. Joseph Wilby for respondents.
No. 736. THE RUBBER TIRE WHEEL COMPANY ET AL., PETITIONERS, v. THE GOODYEAR TIRE RUBBER COMPANY ET AL. March 8, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Thomas W. Bakewell, Mr. Border Bowman, Mr. Charles W. Stapleton, Mr. Frederick P. Fish and Mr. Clarence P. Byrnes for petitioners. Mr. H.A. Toulmin for respondents.
No. 688. PATRICK LENNOX, PETITIONER, v. ALLEN-LANE CO. ET AL.; No. 689. PATRICK LENNOX, PETITIONER, v. ALLEN-LANE CO. ET AL.; NO. 690. PATRICK LENNOX, PETITIONER, v. MELVILLE L. COBB ET AL.; No. 691. PATRICK LENNOX, PETITIONER, v. MELVILLE L. COBB ET AL.; No. 692. PATRICK LENNOX, PETITIONER, v. GEORGE S. ROSENCRANTZ ET AL.; and No. 693. PATRICK LENNOX, PETITIONER, v. GEORGE S. ROSENCRANTZ ET AL. March 15, 1909. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the First Circuit denied. Mr. John P. Leahy for petitioner. Mr. William H. Dunbar and Mr. Frederick P. Fish for respondents.
No. 738. THIRD NATIONAL BANK OF CINCINNATI ET AL., PETITIONERS, v. ZELLA CONAWAY, ADMINISTRATRIX, ETC., ET AL. March 22, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. George M. Hoffheimer for petitioners. Mr. John Bassel for respondents.
No. 745. FRANK J. LOGAN ET AL., PETITIONERS, v. FARMERS' DEPOSIT NATIONAL BANK OF PITTSBURGH, PA., ET AL; and No. 746. ROLLING MILL COMPANY OF AMERICA ET AL., PETITIONERS, v. CANTON ROLL MACHINE COMPANY ET AL. March 22, 1909. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. Hector M. Hitchings for petitioners. Mr. B.M. Ambler and Mr. A. Leo Weil for respondents.
No. 757. SUE KIRKPATRICK ET AL., ETC., PETITIONERS, v. ST. LOUIS SAN FRANCISCO RAILROAD COMPANY. April 5, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Willard L. Sturdevant for petitioners. Mr. W.F. Evans for respondent.
No. 744. FANNIE FINKS ET AL., PETITIONERS, v. FRED FLEMING ET AL. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. F.M. Etheridge and Mr. J.M. McCormick for petitioners. Mr. Maurice E. Locke, Mr. J.W. Terry, Mr. M.M. Crane and Mr. William J. McKie for respondents.
No. 753. FRANK YESBERA, PETITIONER, v. THE HARDESTY MANUFACTURING COMPANY, ETC. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Thomas H. Tracey and Mr. Almon Hall for petitioner. Mr. Melville Church for respondent.
No. 763. JOHN B. HECKENDORN, PETITIONER, v. THE UNITED STATES. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. Everit Brown and Mr. H.J. Cookinham for petitioner. The Attorney General and The Solicitor General for respondent.
No. 764. THE WOLF BROTHERS COMPANY, PETITIONER, v. HAMILTON-BROWN SHOE COMPANY. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Lawrence Maxwell and Mr. Simeon M. Johnson for petitioner. Mr. Paul Bakewell and Mr. Joseph R. Edson for respondent.
No. 771. THE NEW YORK, NEW HAVEN HARTFORD RAILROAD COMPANY, PETITIONER, v. WALTER BAKER COMPANY, LIMITED. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. William Greenough for petitioner. Mr. Eugene P. Carver and Mr. Horace L. Cheyney for respondent.
No. 772. UNITED STATES OF AMERICA, PETITIONER, v. DANIEL GARRIGAN. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. Alfred S. Austrian and Mr. John B. Daish for petitioner. No appearance for respondent.
No. 773. CORN PRODUCTS REFINING COMPANY, PETITIONER, v. GEORGE F. HARDING ET AL. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. Levy Mayer and Mr. John B. Daish for petitioner. Mr. George F. Harding for respondents.
No. 788. EAGLE OIL COMPANY ET AL., PETITIONERS, v. VACUUM OIL COMPANY. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Eugene Mackey and Mr. Cornelius D. Scully for petitioners. Mr. C. Schuyler Davis and Mr. Howard L. Osgood for respondent.
No. 789. CORN PRODUCTS REFINING COMPANY, PETITIONER, v. ROBERT KING. April 12, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. John B. Daish for petitioner. Mr. Lindorf O. Whitnel for respondent.
No. 768. BROWN-KETCHAM IRON WORKS, PETITIONER, v. BANK OF COMMERCE TRUST COMPANY ET AL. April 19, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Caruthers Ewing for petitioner. Mr. J.W. Canada for respondents.
No. 792. NORTH CAROLINA MINING COMPANY, PETITIONER, v. G.R. WESTFELDT ET AL. April 19, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. James H. Merrimon, Mr. Charles A. Moore, Mr. Joseph J. Hooker and Mr. Thomas S. Rollins for petitioner. Mr. Alfred S. Barnard for respondents.
No. 798. LA COMPAGNIE GENERALE TRANSATLANTIQUE, PETITIONER, v. PATRICK MAGUIRE. April 19, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Joseph P. Nolan for petitioner. No appearance for respondent.
No. 796. THE UNITED STATES, PETITIONER, v. BERNARD CITROEN. April 19, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit granted. The Attorney General and The Solicitor General for petitioner. Mr. W. Wickham Smith and Mr. John K. Maxwell for respondent.
No. 785. ISIDORE MEYERSON, PETITIONER, v. HARRY HART ET AL., ETC. April 26, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. George Ryall for petitioner. Mr. Benjamin N. Cardozo for respondents.
No. 804. THE METROPOLITAN TRUST COMPANY OF THE CITY OF NEW YORK, PETITIONER, v. CENTRAL TRUST COMPANY OF NEW YORK ET AL. April 26, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. James Byrne, Mr. Carl Taylor, Mr. L.L. Lewis and Mr. R.B. Davis for petitioner. Mr. Henry W. Anderson, Mr. Arthur H. Van Brunt, Mr. Hill Carter and Mr. John Pickrell for respondents.
No. 809. H. MUELLER MANUFACTURING COMPANY, PETITIONER, v. JOSEPH H. GLAUBER. April 26, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. Charles E. Pickard, Mr. A.H. Adams and Mr. J.L. Jackson for petitioner. Mr. Charles C. Linthicum and Mr. W. Clyde Jones for respondent.
No. 812. O.J. HILL ET AL., PETITIONERS, v. GEORGE W. WALKER, ETC. April 26, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. George B. Webster and Mr. Clayton E. Emig for petitioners. No appearance for respondent.
No. 786. A.J. FENN, PETITIONER, v. W.H. LOUISELLE, ETC. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. H.A. Herbert, Mr. Benjamin Micou and Mr. Richard P. Whiteley for petitioner. Mr. Frank T. Myers for respondent.
No. 794. CHARLES NICKELL, PETITIONER, v. THE UNITED STATES. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. Mr. Thomas O'Day and Mr. Martin L. Pipes for petitioner. The Attorney General and The Solicitor General for respondent.
No. 800. WALTER S. EDDY ET AL., ETC., PETITIONERS, v. CAROLINE M. EDDY. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Watts S. Humphrey and Mr. Benton Hanchett for petitioners. Mr. Alfred Lucking for respondent.
No. 801. J.A. SCRIVEN COMPANY, PETITIONER, v. M.M. NEWCOMER ET AL. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Arthur von Briesen and Mr. George W. Case, Jr., for petitioner. Mr. T.S. Webb and Mr. Lewis M.G. Baker for respondents.
No. 806. THE SNARE TRIEST COMPANY, PETITIONER, v. FANNIE FRIEDMAN, BY HER NEXT FRIEND, SAMUEL FRIEDMAN. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied. Mr. Hector M. Hitchings for petitioner. No appearance for respondent.
No. 808. WILLIAM N. CAMP, PETITIONER, v. LAKE DRUMMOND CANAL WATER COMPANY. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. J.H. Corbitt and Mr. T.D. Savage for petitioner. Mr. Theodore S. Garnett for respondent.
No. 810. CLAUDE W. MASON, PETITIONER, v. THE UNITED STATES. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. G.A. Hanson for petitioner. The Attorney General, The Solicitor General and Mr. Assistant Attorney General Fowler for respondent.
No. 811. POCAHONTAS COAL COKE COMPANY, PETITIONER, v. JOSEPH S. GILLESPIE. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. Joseph S. Clark and Mr. A.W. Reynolds for petitioner. Mr. Holmes Conrad and Mr. J.W. Chapman for respondent.
No. 813. W.S. HARLAN ET AL., PETITIONERS, v. THE UNITED STATES. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. William W. Flournoy and Mr. J.F. Stallings for petitioners. The Attorney General and Mr. Assistant Attorney General Russell for respondent.
No. 814. ROBERT GALLAGHER ET AL., PETITIONERS, v. THE UNITED STATES. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. William W. Flournoy and Mr. J.F. Stallings for petitioners. The Attorney General and Mr. Assistant Attorney General Russell for respondent.
No. 815. E.L. VICKERS ET AL., PETITIONERS, v. THE UNITED STATES. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. William W. Flournoy for petitioners. The Attorney General and The Solicitor General for the respondents.
No. 816. FREDERICK J. LISMAN ET AL., PETITIONERS, v. MILWAUKEE, LAKE SHORE WESTERN RAILWAY COMPANY ET AL. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied. Mr. J.J. Darlington, Mr. Delos McCurdy and Mr. Charles K. Allen for petitioners. Mr. Edward M. Hyzer for respondents.
No. 818. ILLINOIS CENTRAL RAILROAD COMPANY, PETITIONER, v. THE UNITED STATES. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Edmund F. Trabue, Mr. J.C. Doolan, Mr. Attilla Cox, Jr., and Mr. Blewett Lee for petitioner. The Attorney General and The Solicitor General for respondent.
No. 832. ADOLPH KUFFLER, PETITIONER, v. HINSDALE, SMITH COMPANY ET AL. May 3, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Max J. Kohler for petitioner. Mr. Benjamin Tuska for respondents.
No. 821. LUFKIN LAND LUMBER COMPANY, PETITIONER, v. BEAUMONT TIMBER COMPANY, LIMITED. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. A.P. Pujo for petitioner. No appearance for respondent.
No. 833. J.I. CASE PLOW WORKS ET AL., PETITIONERS, v. BRYANT BOND COMPANY. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. F.M. Etheridge and Mr. J.M. McCormick for petitioners. No appearance for respondent.
No. 837. CENTRAL OF GEORGIA RAILWAY COMPANY, PETITIONER, v. THE RAILROAD COMMISSION OF ALABAMA ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Henry C. Cunningham, Mr. Alexander R. Lawton, Mr. T.M. Cunningham, Jr., and Mr. R.E. Steiner for petitioner. Mr. Alexander M. Garber and Mr. Samuel D. Weakley for respondents.
No. 838. THE WESTERN RAILWAY OF ALABAMA, PETITIONER, v. THE RAILROAD COMMISSION OF ALABAMA ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Robert E. Steiner for petitioner. Mr. Alexander M. Garber and Mr. Samuel D. Weakley for respondents.
No. 841. SOUTH AND NORTH ALABAMA RAILROAD COMPANY, PETITIONER, v. THE RAILROAD COMMISSION OF ALABAMA ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Albert S. Brandeis, Mr. Gregory L. Smith, Mr. Henry L. Stone and Mr. George W. Jones for petitioner. Mr. Alexander M. Garber and Mr. Samuel D. Weakley for respondents.
No. 842. NASHVILLE, CHATTANOOGA ST. LOUIS RAILWAY, PETITIONER, v. THE RAILROAD COMMISSION OF ALABAMA ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Albert S. Brandeis, Mr. Gregory L. Smith, Mr. Henry L. Stone and Mr. George W. Jones for petitioner. Mr. Alexander M. Garber and Mr. Samuel D. Weakley for respondents.
No. 843. LOUISVILLE NASHVILLE RAILROAD COMPANY, PETITIONER, v. THE RAILROAD COMMISSION OF ALABAMA ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Albert S. Brandeis, Mr. Gregory L. Smith, Mr. Henry L. Stone and Mr. George W. Jones for petitioner. Mr. Alexander M. Garber and Mr. Samuel D. Weakley for respondents.
No. 845. CENTRAL TRUST COMPANY OF NEW YORK, PETITIONER, v. THE RAILROAD COMMISSION OF ALABAMA ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Adrian H. Joline for petitioner. Mr. Alexander M. Garber and Mr. Samuel D. Weakley for respondents.
No. 849. CORNELL STEAMBOAT COMPANY, OWNER, ETC., PETITIONER, v. WILLIAM K. HAMMOND ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. J. Parker Kirlin and Mr. Amos Van Etten for petitioner. Mr. James Emerson Carpenter and Mr. Samuel Park for respondent.
No. 850. WEST INDIA STEAMSHIP COMPANY, PETITIONER, v. THE CLYDE COMMERCIAL STEAMSHIPS, LIMITED, OWNER, ETC. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Charles S. Haight for petitioner. Mr. J. Parker Kirlin and Mr. John M. Woolsey for respondent.
No. 851. JOHN C. LYNCH, COLLECTOR OF INTERNAL REVENUE, PETITIONER, v. THE UNION TRUST COMPANY OF SAN FRANCISCO ET AL. May 17, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit denied. The Attorney General and the Solicitor General for petitioner. Mr. H.T. Newcomb for respondent. Mr. Barry Mohun, for the Fidelity Trust Company, filed a brief as amicus curice.
No. 852. TANG TUN ET AL., PETITIONERS, v. HARRY EDSELL, CHINESE INSPECTOR, ETC. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit granted. Mr. James A. Kerr for petitioners. The Attorney General and The Solicitor General for respondent.
No. 885. THE UNITED STATES, PETITIONER, v. ALBERT ECKSTEIN. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit granted. The Attorney General and The Solicitor General for petitioner. Mr. Albert H. Washburn for respondent.
No. 886. A.H. GRIGSBY, PETITIONER, v. R.L. RUSSELL ET AL., ADMINISTRATORS, ETC. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit granted. Mr. John A. Pitts for petitioner. No appearance for respondents.
No. 853. A.D. CLARKE ET UX., PETITIONERS, v. T.W. HARRISON. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Charles A. Clark for petitioners. Mr. T.W. Harrison for respondent.
No. 861. THE COLORADO SOUTHERN RAILWAY COMPANY, PETITIONER, v. J.J. SATTERFIELD. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied. Mr. Elmer E. Whitted for petitioner. Mr. Cone Johnson and Mr. J.M. Edwards for respondent.
No. 865. LEEDS CATLIN COMPANY, PETITIONER, v. AMERICAN GRAPHOPHONE COMPANY. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Louis Hicks for petitioner. Mr. Philip Mauro and Mr. C.A.L. Massie for respondent.
No. 868. CITY OF OWOSSO, PETITIONER, v. WARREN BROTHERS COMPANY. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Mr. Henry N. Paul, Jr., and Mr. Joseph C. Fraley for petitioner. Mr. W.K. Richardson and Mr. James M. Head for respondent.
No. 872. THE NEW YORK PRODUCE EXCHANGE BANK, PETITIONER, v. ROBERT PATERSON HOUSTON ET AL., ETC. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. James E. Kelly for petitioner. Mr. J. Parker Kirlin and Mr. Charles R. Hickox for respondents.
No. 875. THE UNITED STATES, PETITIONER, v. RUSCH COMPANY; No. 876. THE UNITED STATES, PETITIONER, v. TITUS BLATTER COMPANY; and No. 877. THE UNITED STATES, PETITIONER, v. W.B. QUAINTANCE. May 24, 1909. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. The Attorney General and The Solicitor General for petitioner. Mr. Albert H. Washburn for respondents.
No. 879. THE TWEEDIE TRADING COMPANY, PETITIONER, v. WILLIAM S. WALSH ET AL.; and No. 880. THE TWEEDIE TRADING COMPANY, PETITIONER, v. THE STEAMSHIP HERM, ETC. May 24, 1909. Petitions for writs of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. George Hiram Mann for petitioner. Mr. J. Parker Kirlin and Mr. Charles R. Hickox for respondents.
No. 882. W. FRANK KINNEY, COLLECTOR, ETC., PETITIONER, v. SAMUEL MORRIS CONANT ET AL., EXECUTORS, ETC. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the First Circuit denied. The Attorney General and The Solicitor General for petitioner. Mr. Walter F. Angell and Mr. Frank H. Swan for respondents.
No. 884. CHARLES W. PINKNEY ET AL., ETC., PETITIONERS, v. THE CHURCH COOPERAGE COMPANY ET AL. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Harrington Putnam for petitioners. Mr. J. Parker Kirlin and Mr. Charles R. Hickox for respondents.
No. 887. NORFOLK COLD STORAGE ICE COMPANY, PETITIONER, v. NORFOLK WESTERN RAILWAY COMPANY. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied. Mr. Floyd Hughes and Mr. J.L. Jeffries for petitioner. Mr. Theodore W. Reath, Mr. R.M. Hughes and Mr. John H. Holt for respondent.
No. 889. THE STEAMSHIP MIRAMAR COMPANY, LIMITED, PETITIONER, v. THE MUNSON STEAMSHIP LINE. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. J. Parker Kirlin and Mr. Charles R. Hickox for petitioner. Mr. Charles S. Haight for respondent.
No. 890. THE NEW YORK PORTO RICO STEAMSHIP COMPANY, PETITIONER, v. ARCHIBALD H. BULL ET AL., OWNERS, ETC. May 24, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Frederick M. Brown for petitioner. Mr. J. Parker Kirlin and Mr. Charles R. Hickox for respondents.
No. 864. F.S. KRETSINGER, TRUSTEE, PETITIONER, v. JOHN H. BROWN, AS EXECUTOR, ETC., ET AL. June 1, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Henry T. Rogers for petitioner. Mr. Henry A. Dubbs for respondents.
No. 896. THE UNITED STATES, PETITIONER, v. BERLINGER, BROWN MEYER. June 1, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. The Attorney General and The Solicitor General for petitioner. Mr. Joseph G. Kammerlohr for respondents.
No. 897. JOHNSON R. MORRIS, PETITIONER, v. THE UNITED STATES. June 1, 1909. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit denied. Mr. Shepard Barclay and Mr. Thomas T. Fauntleroy for petitioner. The Attorney General and The Solicitor General for respondent.
CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT FROM FEBRUARY 24 TO JUNE 1, 1909.
No. 155. THE TEXAS PACIFIC RAILWAY COMPANY ET AL., PLAINTIFFS IN ERROR, v. B.F. ALLEN. In error to the Supreme Court of the State of Texas. February 24, 1909. Dismissed with costs on motion of Mr. W.L. Hall, for the plaintiffs in error. Mr. John F. Dillon, Mr. D.D. Duncan and Mr. W.L. Hall for plaintiffs in error. No appearance for defendant in error.
No. 119. ALBERT H. RUSCH, PLAINTIFF IN ERROR, v. THE ESCANABA TIMBER LAND COMPANY. In error to the Supreme Court of the State of Michigan. February 26, 1909. Dismissed with costs, on motion of counsel for the plaintiff in error. Mr. E.C. Chapin and Mr. O.H. Reed for plaintiff in error. Mr. C.C. Lancaster for defendant in error.
No. 122. THE EDISON ELECTRIC COMPANY, APPELLANT, v. THE CITY OF PASADENA ET AL. Appeal from the Circuit Court of the United States for the Southern District of California. March 16, 1909. Dismissed with costs, on authority of counsel for appellant. Mr. H.H. Trowbridge for appellant. Mr. C.J. Willett, Mr. William J. Hunsaker and Mr. J.P. Wood for appellees.
No. 126. W.A. HUFF, INDIVIDUALLY AND AS TRUSTEE, ETC., ET AL., APPELLANTS, v. WILLIAM L. BIDWELL ET AL. Appeal from the United States Circuit Court of Appeals for the Fifth Circuit. March 17, 1909. Dismissed with a costs, pursuant to the tenth rule. Mr. Augustus O. Bacon for appellants. Mr. Minter Wimberly, Mr. Clifford L. Anderson, Mr. N.E. Harris, Mr. Thomas B. Felder, Jr., and Mr. Olin J. Wimberly for appellees.
No. 134. SANTA RITA MINING COMPANY, PLAINTIFF IN ERROR, v. JAMES N. UPTON. In error to the Supreme Court of the Territory of New Mexico. March 18, 1909. Dismissed with costs, pursuant to the tenth rule. Mr. W.B. Childers for plaintiff in error. No appearance for appellee.
No. 460. THE GARFIELD MEMORIAL HOSPITAL, PLAINTIFF IN ERROR, v. HENRY B.F. MACFARLAND ET AL., COMMISSIONERS OF THE DISTRICT OF COLUMBIA. In error to the Court of Appeals of the District of Columbia. March 22, 1909. Dismissed with costs on motion of Mr. James H. Hayden for the plaintiff in error. Mr. James H. Hayden for plaintiff in error. No appearance for defendants in error.
No. 116. THE PEOPLE OF THE STATE OF NEW YORK ON THE RELATION OF THE NEW YORK ELECTRIC LINES CO., PLAINTIFFS IN ERROR, v. WILLIAM B. ELLISON, COMMISSIONER OF WATER SUPPLY, GAS, AND ELECTRICITY OF THE CITY OF NEW YORK ET AL. In error to the Supreme Court of the State of New York. April 5, 1909. Dismissed with costs on motion of Mr. Frederic D. McKenney, in behalf of counsel for the plaintiff in error. Mr. W.B. Burnet and Mr. J. Aspinwall Hodge for plaintiffs in error. Mr. F.K. Pendleton and Mr. Theodore Connoly for defendants in error.
No. 646. MARIA CRUZ DE GODINES ET AL., APPELLANTS, v. FRANCIS H. DEXTER. Appeal from the District Court of the United States for Porto Rico. April 5, 1909. Dismissed with costs on motion of Mr. Frederic D. McKenney, in behalf of counsel. Mr. Willis Sweet and Mr. T.D. Mott, Jr., for appellants. No appearance for appellee.
No. 135. THE ORDER OF RAILROAD TELEGRAPHERS, APPELLANT, v. THE LOUISVILLE NASHVILLE RAILROAD COMPANY. Appeal from the Circuit Court of the United States for the Western District of Kentucky. April 7, 1909. Dismissed with costs, pursuant to the sixteenth rule, on motion of Mr. T. Kennedy Helm for the appellee. Mr. Benjamin F. Washer for appellant. Mr. James P. Helm, Mr. Henry L. Stone and Mr. Benjamin D. Warfield for appellee.
No. 147. EMETERIO ALVAREZ, POTENCIA MARIANO ET AL., PLAINTIFFS IN ERROR, v. SEVERINA LERMA MARTINEZ DE ALMEDA. In error to the Supreme Court of the Philippine Islands. April 8, 1909. Dismissed with costs, pursuant to the tenth rule. Mr. John M. Thurston for plaintiffs in error. Mr. Marion Butler, Mr. Josiah M. Vale and Mr. Lionel D. Hargis for defendant in error.
No. 160. HUACHUCA WATER COMPANY, APPELLANT, v. THE CITY OF TOMBSTONE. Appeal from the Supreme Court of the Territory of Arizona. April 14, 1909. Dismissed with costs, pursuant to the tenth rule. Mr. Allen R. English for appellant. Mr. H.L. Pickett for appellee.
No. 186. THE LOUISVILLE SOUTHERN INDIANA TRACTION COMPANY, PLAINTIFF IN ERROR, v. ZACH T. LEAF. In error to the Supreme Court of the State of Indiana. April 22, 1909. Dismissed with costs, pursuant to the tenth rule. Mr. Merrill Moores for plaintiff in error. Mr. George E. Sullivan and Mr. Horace L.B. Atkisson for defendant in error.
No. 595. GREAT NORTHERN RAILWAY COMPANY, PLAINTIFF IN ERROR, v. THE UNITED STATES. In error to the Circuit Court of the United States for the Southern District of New York. April 26, 1909. Dismissed on motion of counsel for plaintiff in error. Mr. Joseph G. Dudley for plaintiff in error. The Attorney General for defendant in error.
No. 195. C. ELMER SMITH ET AL., EXECUTORS, ETC., APPELLANTS, v. THE KING OF ARIZONA MINING MILLING COMPANY ET AL. In error to the Supreme Court of the Territory of Arizona. April 27, 1909. Dismissed with costs, pursuant to the tenth rule. Mr. J.F. Conroy for appellants. Mr. Eugene S. Ives for appellees.
No. 199. CANDIDO ACOSTA, ANTONIO ACOSTA, AND ANSELMO ACOSTA, APPELLANTS, v. THE PEOPLE OF PORTO RICO. In error to the Supreme Court of Porto Rico. April 28, 1909. Dismissed with costs on motion of Mr. George H. Lamar in behalf of counsel for the appellants. Mr. N.B.K. Pettingill for appellants. No appearance for appellees.
No. 718. CENTURY MERCANTILE COMPANY, PLAINTIFF IN ERROR, v. JOHN HOFMAN COMPANY. In error to the Court of Appeals of the State of New York. April 29, 1909. Judgment reversed upon confession of error and request of defendant in error, and cause remanded to be proceeded in according to law and justice. Mr. Herbert D. Bailey for plaintiff in error. Mr. John A. Barhite for defendant in error.
No. 211. JACINTHO MIGUEL, PLAINTIFF IN ERROR, v. THE TERRITORY OF HAWAII. In error to the Supreme Court of the Territory of Hawaii. April 30, 1909. Dismissed with costs, pursuant to the tenth rule. Mr. Jacintho Miguel pro se. No appearance for defendant in error.
No. 347. THE TEXAS PACIFIC RAILWAY COMPANY ET AL., PLAINTIFFS IN ERROR, v. W.H. TUCKER, GUARDIAN, ETC. In error to the Court of Civil Appeals for the Second Supreme Judicial District of the State of Texas. May 3, 1909. Judgment reversed with costs upon confession of error and request of defendant in error, and cause remanded to be proceeded in according to law and justice. Mr. John F. Dillon and Mr. W.L. Hall for plaintiffs in error. Mr. Theodore Mack for defendant in error.
No. 433. THE TOWN OF STEAMBOAT SPRINGS ET AL., APPELLANTS, v. THE STEAMBOAT SPRINGS ELECTRIC COMPANY. Appeal from the Circuit Court of the United States for the District of Colorado. May 17, 1909. Dismissed with costs on motion of counsel for appellants. Mr. Edward P. Costigan for appellants. Mr. Tyson S. Dines, Mr. Elmer E. Whitted and Mr. Peter J. Holme for appellee.
RULES FOR PRACTICE AND PROCEDURE UNDER SECTION 25 OF AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT, APPROVED MARCH 4, 1909, TO TAKE EFFECT JULY 1, 1909, CHAPTER 320, 35 STAT. 1075, AND PROMULGATED BY THE SUPREME COURT OF THE UNITED STATES, JUNE 1, 1909.
October Term, 1908. Order. June 1, 1909.
It is now here ordered by the court that the Rules for Practice and Procedure under Section 25 of the Act to amend and consolidate the Acts respecting Copyright, approved March 4, 1909, to go into effect July 1, 1909, this day adopted and established by the court, be, and the same are hereby, promulgated as such.
Rules adopted by the Supreme Court of the United States for practice and procedure under section 25 of an act to amend and consolidate the acts respecting copyright, approved March 4, 1909. Chapter 320, 35 Stat. 1075. To go into effect July 1, 1909.
SEC. 25. That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable:
(a) To an injunction restraining such infringement;
(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed Page 534 the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty:
First. In the case of a painting, statue, or sculpture, ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;
Second. In the case of any work enumerated in section five of this Act, except a painting, statue or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;
Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery;
Fourth. In the case of a dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance;
(c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright;
(d) To deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order;
(e) Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: Provided also, That whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments Page 535 serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid.
Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States.
Sections 26, 27 and 34 to 40 of the Copyright Act of March 4, 1909, are as follows:
SEC. 26. That any court given jurisdiction under section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided.
SEC. 27. That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action.
SEC. 34. That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the Circuit Courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.
SEC. 35. That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found.
SEC. 36. That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by Page 536 proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants.
SEC. 37. That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office.
SEC. 38. That the orders, judgments, or decrees of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said court, respectively.
SEC. 39. That no criminal proceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose.
SEC. 40. That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs.
1.
The existing rules of equity practice, so far as they may be applicable, shall be enforced in proceedings instituted under section twenty-five (25) of the Act of March fourth, nineteen hundred and nine, entitled "An act to amend and consolidate the acts respecting copyright."
2.
A copy of the alleged infringement of Copyright, if Copyright, if actually made, and a copy of the work alleged to be infringed, should accompany the petition, or its absence be explained; except in cases of alleged infringement by the public performance of dramatic and dramatico-musical compositions, the delivery of lectures, sermons, addresses, and so forth, the infringement of copyright upon sculptures and other similar works and in any case where it is not feasible.
3.
Upon the institution of any action, suit or proceeding, or at any time thereafter, and before the entry of final judgment or decree therein, the plaintiff or complainant, or his authorized agent or attorney, may file with the Clerk of any Court given jurisdiction under section 34 of the Act of March 4, 1909, an affidavit stating upon the best of his knowledge, information and belief, the number and location, as near as may be, of the alleged infringing copies, records, plates, molds, matrices, etc., or other means for making the copies alleged to infringe the copyright, and the value of the same, and with such affidavit shall file with the Clerk a bond executed by at least two sureties and approved by the Court or a Commissioner thereof.
4.
Such bond shall bind the sureties in a specified sum, to be fixed by the Court, but not less than twice the reasonable value of such infringing copies, plates, records, molds, matrices, or other means for making such infringing copies, and be conditioned for the prompt prosecution of the action, suit or proceeding; for the return of said articles to the defendant, if they or any of them are adjudged not to be infringements, or if the action abates, or is discontinued before they are returned to the defendant; and for the payment to the defendant of any damages which the Court may award to him against the plaintiff or complainant. Upon the filing of said affidavit and bond, and the approval of said bond, the clerk shall issue a writ directed to the Marshal of the district where the said infringing copies, plates, records, molds, matrices, etc., or other means of making such infringing copies shall be stated in said affidavit to be located, and generally to any Marshal of the United States, directing the said Marshal to forthwith seize and hold the same subject to the order of the Court issuing said writ, or of the Court of the district in which the seizure shall be made.
5.
The Marshal shall thereupon seize said articles or any smaller or larger part thereof he may then or thereafter find, using such force as may be reasonably necessary in the premises, and serve on the defendant a copy of the affidavit, writ and bond by delivering the same to him personally, if he can be found within the district, or if he cannot be found, to his agent, if any, or to the person from whose possession the articles are taken, or if the owner, agent, or such person cannot be found within the district, by leaving said copy at the usual place of abode of such owner or agent, with a person of suitable age and discretion, or at the place where said articles are found, and shall make immediate return of such seizure, or attempted seizure, to the Court. He shall also attach to said articles a tag or label stating the fact of such seizure and warning all persons from in any manner interfering therewith.
6.
A Marshal who has seized alleged infringing articles, shall retain them in his possession, keeping them in a secure place, subject to the order of the Court.
7.
Within three days after the articles are seized, and a copy of the affidavit, writ and bond are served as hereinbefore provided, the defendant shall serve upon the clerk as notice that he excepts to the amount of the penalty of the bond, or to the sureties of the plaintiff or complainant, or both, otherwise he shall be deemed to have waived all objection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the Court sustain the exceptions it may order a new bond to be executed by the plaintiff or complainant, or in default thereof within a time to be named by the Court, the property to be returned to the defendant.
8.
Within ten days after service of such notice, the attorney of the plaintiff or complainant shall serve upon the defendant or his attorney a notice of the justification of the sureties, and said sureties shall justify before the Court or a Judge thereof at the time therein stated.
9.
The defendant, if he does not except to the amount of the penalty of the bond or the sufficiency of the sureties of the plaintiff or complainant, may make application to the Court for the return to him of the articles seized, upon filing an affidavit stating all material facts and circumstances tending to show that the articles seized are not infringing copies, records, plates, molds, matrices, or means for making the copies alleged to infringe the copyright.
10.
Thereupon the Court in its discretion, after such hearing as it may direct, may order such return upon the filing by the defendant of a bond executed by at least two sureties, binding them in a specified sum to be fixed in the discretion of the Court, and conditioned for the delivery of said specified articles to abide the order of the Court. The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond.
11.
Upon the granting of such application and the justification of the sureties on the bond, the Marshal shall immediately deliver the articles seized to the defendant.
12.
Any service required to be performed by any Marshal may be performed by any deputy of such Marshal.
13.
For services in cases arising under this section, the Marshal shall be entitled to the same fees as are allowed for similar services in other cases.